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Documents/Rfs2-Small-Refiner- Study-Addendum-05-2014.Pdf No. 20-472 IN THE Supreme Court of the United States ———— HOLLYFRONTIER CHEYENNE REFINING, LLC, HOLLY-FRONTIER REFINING & MARKETING, LLC, HOLLYFRONTIER WOODS CROSS REFINING, LLC, & WYNNEWOOD REFINING CO., LLC, Petitioners, v. RENEWABLE FUELS ASSOCIATION, et al., Respondents. ———— On Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit ———— BRIEF OF COUNTRYMARK REFINING AND LOGISTICS, LLC AS AMICUS CURIAE SUPPORTING PETITIONER ———— DEREK R. MOLTER Counsel of Record JENNY R. BUCHHEIT ICE MILLER LLP One American Square Suite 2900 Indianapolis, Indiana 46282 (317) 236-2100 Jenny.Buchheit@ icemiller.com Counsel for Amicus Curiae February 26, 2021 WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................ ii INTEREST OF AMICUS CURIAE ..................... 1 SUMMARY OF ARGUMENT ............................. 3 ARGUMENT ........................................................ 4 I. CountryMark, as a farmer-owned cooper- ative, has long advanced the cause of renewable fuels ......................................... 4 II. Because it is a farmer-owned small refinery in Indiana, CountryMark faces unique challenges to increasing renew- able fuels ................................................... 6 A. Ethanol ................................................ 6 B. Diesel and Biodiesel ............................ 9 III. CountryMark requires an SRE in some years even though it has been able to comply with its RVO obligations without an SRE in other years ............................... 12 IV. The Tenth Circuit’s decision threatens financial ruin for CountryMark ............... 17 CONCLUSION .................................................... 19 (i) ii TABLE OF AUTHORITIES CASES Page(s) Americans for Clean Energy v. EPA, 864 F.3d 691 (D.C. Cir. 2017) ................... 9 Renewable Fuels Ass’n v. U.S. Envtl. Prot. Agency, 948 F.3d 1206 (10th Cir. 2020) ................. 19 Sinclair Wyoming Ref. Co. v. United States Envtl. Prot. Agency, 887 F.3d 986 (10th Cir. 2017) ................... 14 STATUTES AND REGULATIONS 42 U.S.C. § 7545(o)(3)(B)(i) .......................... 14 42 U.S.C. § 7545(o)(9)(A) .............................. 13 42 U.S.C. § 7545(o)(9)(B)(i) .......................... 15 Ind. Code § 16-44-2-8 .................................... 7 40 C.F.R. pt. 80 ............................................. 15 40 C.F.R. § 80.1405 ...................................... 6, 15 OTHER AUTHORITIES CountryMark Co-op moves B5 through private pipeline, Biodiesel Magazine (September 1, 2006), available at http:// www.biodieselmagazine.com/articles/1091 /countrymark-co-op-moves-b5-through- private-pipeline ......................................... 10 EPA, RIN Trades and Price Information, https://www.epa.gov/fuels-registration- reporting-and-compliance-help/rin-trades -and-price-information (last visited Feb. 25, 2021) .................................................... 9, 12 iii TABLE OF AUTHORITIES—Continued Page(s) EPA Press Office, EPA Delivers on President Trump’s Promise to Allow Year-Round Sale of E15 Gasoline and Improve Transparency in Renewable Fuel Markets (May 31, 2019), available at https://www.epa.gov/newsreleases/ epa-delivers-president-trumps-promise-all ow-year-round-sale-e15-gasoline-and-imp rove ............................................................ 7 Grant Smith, OPEC Nations Howl for Mercy as Saudi-Russia Oil War Deepens, Bloomberg (March 27, 2020), available at https://www.bloomberg.com/news/article s/2020-03-27/opec-nations-howl-for-merc y-as-saudi-russia-oil-war-deepens............ 16 Kelsi Bracmort, The Renewable Fuel Standard Congressional Research Ser- vice (Mar. 2, 2020), available at https: //crsreports.congress.gov/product/pdf/R/R 46244 ......................................................... 13 Meggie Foster, CountryMark debuts new brand, re-energized vision, Farm World (June 21, 2007), available at http:// www.farmworldonline.com/news/Archive Article.asp?newsid=4377 ......................... 2, 9-10 Morning AgClips, CountryMark CEO retires after oil industry career (October 29, 2019), available at https://www. morningagclips.com/countrymark-ceo-re tires-after-oil-indu stry-career/ ................ 5 iv TABLE OF AUTHORITIES—Continued Page(s) Renewable Fuel Standard Program: Standards for 2014, 2015, and 2016 and Biomass-Based Diesel Volume for 2017, 80 Fed, Reg. 77,420, available at https://www.govinfo.gov/content/pkg/FR- 2015-12-14/pdf/201 5-30893.pdf ............... 15 U.S. Congressional News, Heitkamp Joins Klobuchar, Grassley in Bipartisan Call to Maintain Strong Renewable Fuel Standard, 2017 WLNR 8392108 (March 16, 2017) .................................................... 14 U.S. Dept. of Agriculture, Rural Coop- eratives (September/October 2013), available at https://www.rd.usda.gov/fil es/rdRuralCoop_Sept_Oct13Vr_Web.pdf . 1 U.S. Dep’t of Energy, Addendum to the Small Refinery Exemption Study: An Investigation into Disproportionate Eco- nomic Hardship (May 2014), available at https://www.epa.gov/sites/production/file s/2016-12/documents/rfs2-small-refiner- study-addendum-05-2014.pdf ................... 14 U.S. Dep’t of Energy, Ethanol, https://www. fuel economy.govc.shtml (last visited Feb. 25, 2021) ............................................ 8 U.S. Dep’t of Energy, Small Refinery Exemption Study: An Investigation into Disproportionate Economic Hardship (March 2011), available at https:// www.epa.gov/sites/production/files/2016- 12/documents/small-refinery-exempt- study.pdf .................................................... 10 v TABLE OF AUTHORITIES—Continued Page(s) U.S. Energy Information Admin., Biofuels explained, https://www.eia.gov/energyex plained/biofuels/ (last visited Feb. 25, 2021) .......................................................... 11 U.S. Energy Information Admin., FAQs, How much ethanol is in gasoline, and how does it affect fuel economy?, https://www.eia.gov/tools/faqs/faq.php?id =27&t=10#:~:text=E10%20is%20gasolin e%20with%2010,up%20to%2085%25%20 fuel%20ethanol (last visited Feb. 25, 2021) .......................................................... 6, 7 West Virginia Oil Marketers and Grocers Association, How much money do businesses make on fuel purchases, available at https: //www.omegawv.com /faq/140-how-much-money-do-businesses -make-on-fuel-purchases.html ................. 7-8 Written statement of CountryMark Coop- erative Holding Corporation as submit- ted to the Subcomm. on Energy and the Subcomm. on Oversight (July 23, 2015), available at https: //science.house.gov/ imo/media/doc/CountryMark%20Written %20Testimony%20-%20House%20Scienc e%20July%202015%20rev%20final.pdf ... 5 INTEREST OF AMICUS CURIAE Countrymark Refining and Logistics, LLC (“CountryMark”)1 is a farmer-owned cooperative that began in 1919. Its Board of Directors is controlled by farmers, and each year, its profits are distributed back to farmers through the cooperative system. In 2012, CountryMark was recognized as the 12th largest agriculture cooperative in the nation,2 and today it is owned by over 140,000 farmers in Indiana, Michigan, Illinois, and Ohio. CountryMark has a significant interest in this appeal because the Tenth Circuit’s decision threatens financial ruin for CountryMark. Much like the small refineries Petitioners discussed, the demise of CountryMark would significantly harm the rural regions in which it operates. In particular, CountryMark employs nearly 500 workers, mostly in the rural economy of southwest Indiana and southeast Illinois. In just Posey County, Indiana alone, a county with only 26,000 residents, CountryMark provides over $30 million in wages and benefits each year. In 2019, it purchased over $500 million of crude oil primarily from the Illinois Basin, and those purchases provided income to the 40,000 royalty owners in the Illinois Basin. Its products are 1 Pursuant to Rule 37.3(a), CountryMark states that counsel for Petitioners and Respondents have provided written consent to the filing of this brief. Pursuant to Rule 37.6, CountryMark affirms that no counsel for a party authored this brief in whole or in part; no such counsel or a party made a monetary contribution to fund its preparation or submission; and no person other than CountryMark, its members, or its counsel made such a monetary contribution. 2 See United States Department of Agriculture, Rural Cooperatives, p.3 (September/October 2013), available at https:// www.rd.usda.gov/files/rdRuralCoop_Sept_Oct13Vr_Web.pdf. 2 also sold and distributed through its branded dealer network, providing employment throughout rural communities in Indiana and surrounding states. CountryMark is the only farmer-owned integrated oil company in the United States, and it is recognized in Indiana as a leader in the distribution of biodiesel and ethanol.3 Its refinery, which uses 100% American crude oil, processes 30,000 barrels of crude per day. It supplies over 65% of agricultural market fuels and 50% of school district fuels in the State of Indiana. CountryMark is subject to the Renewable Fuels Standard. But even without federal requirements, CountryMark has long been supportive of renewable fuels. Indeed, the patronage refunds to its farmer- owners are adjusted based on customer renewable fuels usage to provide incentives for higher blends of ethanol and biodiesel. While CountryMark plays a critical role in its regional market, it is a small refinery on a relative basis—its capacity is 1/10 the size of the average
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